ALSO BY DAVID K. SHIPLER
The Working Poor: Invisible in America
A Country of Strangers: Blacks and Whites in America
Arab and Jew: Wounded Spirits in a Promised Land
Russia: Broken Idols, Solemn Dreams
THIS IS A BORZOI BOOK
PUBLISHED BY ALFRED A. KNOPF
Copyright © 2011 by David K. Shipler
All rights reserved. Published in the United States by Alfred A. Knopf, a division of Random House, Inc., New York, and in Canada by
Random House of Canada Limited, Toronto.
www.aaknopf.com
Knopf, Borzoi Books, and the colophon are
registered trademarks of Random House, Inc.
Library of Congress Cataloging-in-Publication Data
Shipler, David K., date.
The rights of the people: how our search for safety invades our liberties / David K. Shipler.—1st ed.
p. cm.
A Borzoi book.
eISBN: 978-0-307-59550-8
1. Civil rights—United States. 2. Law enforcement—United States.
3. Rule of law—United States. I. Title.
JC599.U5S495 2011
323.0973—dc22 2010034255
Jacket design by Jason Booher
v3.1_r2
For Madison, Ethan, Benjamin, Kalpana, Dylan,
and those of their generation yet to come.
CONTENTS
Cover
Other Books by This Author
Title Page
Copyright
THE BILL OF RIGHTS
PREFACE
ACKNOWLEDGMENTS
CHAPTER ONE: Saving the Constitution
The State Religion
Deviations
Secret Suppression
Criminal Acts
Lawyers versus the Rule of Law
Taking Chances
CHAPTER TWO: Another Country
Frisking Pedestrians
Profiling Cars and Drivers
Obtaining Consent
CHAPTER THREE: Defending the System
An Indifference to Perjury
Discrediting the Police
Sowing Reasonable Doubt
The Airtight Arrest
Subtle Shortcuts
CHAPTER FOUR: With Warrants and Without
Home Invasion
Deterring the Police
Undoing the Exclusionary Rule
Suspicionless Searches
CHAPTER FIVE: Patriotic Acts
Sneak and Peek
Junk Forensics
Secret Surveillance and Self-Deception
The Investigator’s Toolbox
CHAPTER SIX: The Law Falls Silent
The Continuum of Intrusion
Data: Destroy or Disseminate
Mission Creep
A Bigger Haystack
Contempt of Court
CHAPTER SEVEN: The Right to Be Let Alone
The Poetry of Privacy
The Tyranny of Technology
The Surveillance-Industrial Complex
The Privatization of Searches
CHAPTER EIGHT: Life, Liberty, and the Pursuit of Terrorists
Rorschach Tests
Terrorism and the Bill of Rights
Conspirators and Wannabes
EPILOGUE: The High Court of History
NOTES
A Note About the Author
THE BILL OF RIGHTS
FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
SECOND AMENDMENT
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
THIRD AMENDMENT
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
FOURTH AMENDMENT
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
FIFTH AMENDMENT
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
SEVENTH AMENDMENT
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
EIGHTH AMENDMENT
NINTH AMENDMENT
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
TENTH AMENDMENT
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
PREFACE
Most of the people in this book are powerless until they find a handhold on the Bill of Rights. There, embedded in the first ten amendments to the Constitution, are the words the framers gave them to climb and counter the mighty state, to keep their speech free, their confessions true, their trials fair, their homes and files sealed from cavalier invasion by police. If the rights were solid, all of the people’s stories would be uplifting.
But parts of the Bill of Rights are eroding—dramatically in the war on terrorism and less obviously, more gradually, in the war on drugs and other common crime. In courtrooms where hardly anybody goes to watch, violations of the same rights undermined by counterterrorism are evident, if less flagrant: searches without warrants, coerced confessions, punishment before judgment, the near extinction of jury trials, and legal defenses impaired by poverty and unreasonable procedure. In criminal justice as in counterterrorism, the executive branch has grabbed immense authority, distorting the process of determining guilt or innocence. All these are breaches of our founding principles.
The principles remain, compromised but not abandoned. They rescue some of the people in these pages and leave others to suffer from government’s abuse. Those who are violated, whose rights lose force, tell a cautionary tale to those of us who have not been victims, yet.
I decided to do this book on the morning of September 11, 2001. Sometime
around 11 a.m. I finally loosened myself from the grip of the awful images on television, stepped outside into the dappled sunshine of a brilliant day, and in a moment of extreme clarity had an extreme thought: There go our civil liberties.
It was a rash prediction, I knew, and I quickly re-formed it into a question about how firmly we would hold our liberties in such a time of testing; whether the Bill of Rights would sustain us. I figured there would be deterioration, but how much? Where would we come out at the other end? That was about as far as my thinking could progress on that dreadful day.
I had another book to finish first, which took me another two years, and by then my curiosity had broadened beyond counterterrorism onto much larger ground: What happens when rights are denied to individuals who dissent, protest, or run afoul of the law? How do the Constitution and the key elements of the Bill of Rights play on the lives of citizens and immigrants in everyday America?
That has been the framework of this exploration. When I told people I was writing about civil liberties, I was peppered with wisecracks: “Oh, remember them?” “Better hurry, there won’t be any left.” “You’re doing a history!” At a luncheon in Washington during the administration of George W. Bush, retired generals and ambassadors at my table jumped in with a raucous round of one-liners: “I guess it won’t be a long book.” “It’s getting shorter and shorter.” “You’ll be a pamphleteer!” Ha ha.
I couldn’t keep it short, a sign of the complexity of our constitutional culture—for it is a culture as well as a body of law, containing not only rules and regulations but also values and mores. This makes a landscape too vast for a single volume, so I’ve divided it into two books, with the second to be published a year after the first. This one focuses mainly on the element of liberty most severely affected by the spasm of fear following 9/11: the physical boundary between the individual and the state, guarded by the Fourth Amendment, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The second book will assess the risks to rights protected by the First, Fifth, and Sixth Amendments, and the implications for accused criminals, legal immigrants, and ordinary citizens seeking to practice democracy and maintain individual liberty.
The boundaries of this journey encompass some issues and exclude others, according to a logic that I hope seems sensible.
The first limit is geographical. The domestic arena is the subject here. Wherever certain counterterrorism tactics have been used, whether at home or abroad, controversy has erupted when they violate constitutional principles central to life inside the country. Yet by and large, the Constitution does not apply outside the United States unless a defendant is questioned by American officials or their agents and is then brought to the United States for prosecution. My focus is not our behavior overseas—at our naval base in Guantánamo Bay, Cuba, or in secret CIA prisons—unless it implicates law and justice on American soil, as it sometimes has.
The second boundary is drawn to emphasize constitutional rights whose denial inhibits free discussion, undermines privacy, or impairs the truth-finding process that can lead to imprisonment. Starkly damaged by the government’s campaign against terrorism, they are the same rights that have long been subjected to daily stress in our schools, our streets, and our criminal courts. They include the right to speak and the right to be silent (in the First and Fifth Amendments, respectively); the right to be free from unreasonable searches (in the Fourth Amendment); and the constellation of due process rights (largely in the Sixth Amendment)—to confront the evidence, to summon witnesses, to retain counsel, and to be tried by a jury—all designed to produce reliable determinations of fact. They also include the checks and balances created by the Constitution’s separation of powers, undermined most vividly by excessive claims of presidential authority and less visibly by prosecutors’ authority to manipulate charges and sentences.
Third, because the Bill of Rights restricts only government, not private entities, I focus here on the powers of the state, not the intrusions of the private sector. There is some overlap, to be sure, especially in the area of data collection and surveillance, where information collected privately can be obtained by government. That interface is examined, but most nongovernmental impact on the constitutional culture is not.
By concentrating on these three areas of geography, consequential rights, and governmental actors, I set aside certain issues. No writer enjoys making difficult omissions, so I take no pleasure in the minimal discussion of the right to bear arms in the Second Amendment, for example, and the ban on cruel and unusual punishment in the Eighth Amendment—worthy topics but tangential to the human and legal struggles illuminated here.
It is easier to exclude provisions of the Bill of Rights that have not been central to constitutional conflict. We have not seen violations of the Third Amendment, which prohibits soldiers from moving into private houses during peacetime without owners’ consent, or of the Seventh Amendment, which guarantees the right to jury trials in civil suits. There has been judicial jockeying around federalism and states rights but arguably no serious defiance of the Ninth and Tenth Amendments, which provide that the people and the states reserve rights that are not enumerated or delegated.
• • •
To search and seize, officers of the law must touch you and your possessions, either with their hands or, increasingly, with computer software that intrudes into digital files. Uncontrolled, the authority to search “is one of the first and most effective weapons in the arsenal of every arbitrary government,” Justice Robert H. Jackson wrote in 1949. And so the Fourth Amendment’s shield belongs “in the catalog of indispensable freedoms,” he declared. “Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart.”
Today, the government’s powers to probe into your private life have been arranged along a broad spectrum. If you stand at the end most faithful to the Constitution, you see the traditional search warrant, which is supposed to follow an exacting requirement: a sworn affidavit from the executive branch, and endorsed by the judicial branch, that probable cause exists to believe that a particular piece of evidence of a particular crime will be found in a particular place at a particular time. This is where the brightest sunshine illuminates the actions of law enforcement.
Take a few steps from the Constitution and you find yourself in the twilight of crime-ridden neighborhoods where cops frisk pedestrians and search cars without warrants, on the officers’ sole determination that they have reasonable suspicion or probable cause. Their actions may be reviewed by the courts, so you can still watch government at work, but dimly.
Traveling along the continuum, you plunge into a darkness where the secret Foreign Intelligence Surveillance Court issues clandestine warrants authorizing stealthy break-ins at homes and offices, collections of phone and e-mail communications, and sweeps through financial and travel and medical records. You may never know that you’ve been a target, but at least a neutral judge has reviewed the surveillance request.
Finally, toward the furthest end of the spectrum, most distant from the protections of the Constitution, you are subject to searches and monitoring at the whim of middle-level agents in the executive branch, without probable cause, without public knowledge, without a judge to check and balance the voracious appetite of law enforcement for vast quantities of information. The flood of unverified intelligence has overwhelmed analysts and investigators, distorting their work. From lightness to darkness, this continuum is mapped by the chapters that follow.
The intimate intrusions are part of a long history, and while this book is about the present, it comes with some perspective on the past. Chapter One, “Saving the Constitution,” sketches America’s deviations from constitutional principles in six episodes from the eighteenth century into the current post-9/11 era.
The next three chapters go into the streets to w
atch narcotics police, gun squads, and cops on the beat honor or ignore the Fourth Amendment’s guarantee against unreasonable search as they try to hold down common crime. These issues predate 9/11, of course, but stand on the same spectrum as the more insidious violations of privacy since then. Each chapter describes the intricate literature of evolving court opinions governing what police may see and seize.
Chapter Two, “Another Country,” portrays the interaction between that body of case law and officers’ behavior toward citizens in dangerous neighborhoods. Chapter Three, “Defending the System,” explores the temptation for cops to fudge the facts, and defense attorneys’ efforts to get evidence suppressed by exposing police lies in court. Chapter Four, “With Warrants and Without,” assesses the current health of the search warrant, which is the key protection of the Fourth Amendment. The section examines the Supreme Court’s accelerating campaign to emasculate the exclusionary rule, that longstanding practice of protecting rights by excluding evidence seized in violation of the Constitution.
The three following chapters explore the hidden mechanisms, enhanced since September 11, 2001, now being used to collect personal information without meeting the standards set by the Fourth Amendment. Chapter Five, “Patriotic Acts,” describes the impact on several Americans of secret surveillance under the Foreign Intelligence Surveillance Act (FISA), as expanded by the Patriot Act. Chapter Six, “The Law Falls Silent,” reports on the human costs and legal damage of gag orders and warrantless subpoenas called National Security Letters, of computerized monitoring by the National Security Agency, and of privacy laws now riddled with exceptions. Chapter Seven, “The Right to Be Let Alone,” examines the inaccuracies of no-fly lists, the privatization of personal data collection, and the rising tyranny of technology.